RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX 	CASE:  PD-2015-02499
BRANCH OF SERVICE:  navy 	SEPARATION DATE:  20030718

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Equipment Operator, medically separated for “chronic mechanical low back pain with subjective left lower extremity (radiculopathy)”  rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends his condition continues to worsen and negatively impacts his daily activities.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting or non-compensable.  Any conditions outside the panel’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition(s) at the time of separation.  The panel has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB – 20030407 	VARD - 20031007	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical Low Back Pain with Subjective Left Lower Extremity 	5295	10%	Facet Sclerosis at L4-5 with Broad Based Disk Bulge at L3-4	5293-5295	20%	20030619	
	5295-8520	10%					
Radiculopathy	Cat II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Mechanical Low Back Pain with Subjective Left Lower Extremity Radiculopathy.    According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s atraumatic low back condition began in March 2001.  In June 2001 the CI reported pain radiating down the right to the buttock and down the left leg to the knee.  Magnetic resonance imaging in June 2001 demonstrated a posterior and left herniated intervertebral disc L3-L4, which obliterated the anterolateral and left epidural space and the left L4 nerve root.  There was mild degeneration of the L3-L4 disc with some degree of loss in height.   Orthopedic evaluation in October 2001 noted the CI had low back pain, with infrequent radicular type symptoms.  At an orthopedic spine evaluation on 11 February 2002 the CI was diagnosed as having an L3-4 herniated nucleus pulposus with probable neural irritation.  An MRI dated 9 March 2002 demonstrated lumbar spine spondylosis and a possible transitional L5 vertebra versus a pars defect and there were broad based disc bulges anteriorly at L3-4 and L4-5 that flattened the thecal sac, but without significant neural structure compression and no contact of the L4 nerve roots in the lateral recesses.  A bone scan dated 11 June 2002 revealed no abnormal uptake at the L4-S1 region.  A 10 July 2002 neurological evaluation impression was left sided lumbosacral radiculopathy on 10 July 2002.  A physical therapy note dated 20 August 2002 indicated the CI had lumbosacral flexion of 25 degrees and extension of 17 degrees.  

The 26 November 2002 MEB NARSUM examination, 8 months prior to separation, noted complaints of activity related low back pain with subjective left lower extremity radiculopathy.  Physical examination showed tenderness to palpation in the paraspinal musculature.  Flexion was fingers to knees.  Extension was approximately 20 degrees.  Motor strength was normal and sensation was intact in the lower extremities.  Reflexes were 1/4 and straight leg raise testing on the right produced back pain only and on the left back pain with posterior thigh and heel pain.  

During the 14 March 2003 MEB examination (recorded on DD Forms 2807-1 dated 26 December 2002 and 2808), 4 months prior to separation, the CI reported constant back pain due to L3-L4/L4-L5 herniated discs and tingling in his left foot.  Physical examination showed normal reflexes and gait.  There were negative straight leg raises (to determine nerve root irritation) bilaterally.  The examiner noted that the CI could toe touch to approximately 2 feet from the ground. 
  
At the 19 June 2003 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported daily, constant pain with radiation to the left lower extremity and occasional numbness and tingling.  Physical examination showed a normal posture and gait.  There was mild paralumbar muscle spasm at L3-4 and L4-5.  Range of motion (ROM) measurements were flexion of 60 degrees, extension of 30 degrees, right and left lateral flexion of 40 degrees each, and right and left rotation of 35 degrees each.  There was evidence of painful motion in forward flexion and extension.  Objectively, there was no evidence of radiculopathy in the sitting or lying positions.  X-rays dated 19 June 2003 demonstrated narrowing of the L5-S1 disc space and L5 was a transitional vertebra.    

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5295 (lumbosacral strain with characteristic pain on motion), and the left lower extremity radiculopathy 10%, coded 5295-8520 (lumbosacral strain-mild incomplete paralysis of the sciatic nerve).  The PEB noted that the radiculopathy was related to the unfitting Navy Category I conditions, but labeled it as such as a Category II condition.  The VA rated the back condition 20%, coded 5293-5295, (intervertebral disc syndrome-lumbosacral strain), based on the C&P examination 1 month before separation, citing painful and moderate limited lumbar spine motion with a muscle spasm and reported symptoms of pain that radiated to the left lower extremity with occasional numbness and tingling. 

The panel noted the PEB assigned a 10% rating for the back condition using the interim spine rules (VASRD rules in effect at the time of separation).  A 20% rating, coded 5295, required “lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position.”  These were not supported in the examination evidence above.  However, use of code 5292 (spine, limitation of motion of, lumbar) offered a 20% option for a moderate disability and a 10% option for a slight disability.  At the MEB NARSUM examination flexion was fingers to knees and at the MEB examination the toe touch was approximately 2 feet off the ground, while at the VA C&P examination flexion was 60 degrees.  Therefore, the panel agreed that a 20% rating, but no higher, was justified for moderate limitation of motion under code 5292.    

Panel members then considered the PEB rating of the subjective left lower extremity radiculopathy, coded 5295-8520.  The panel considered whether an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Although the initial MRI showed evidence of a herniated intervertebral disc at L3-L4, the subsequent MRI did not mention any involvement of the left L4 nerve root and no radiculopathy was noted on the VA examination.  The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’s decision to recommend any condition for rating as additionally unfitting.  Therefore, the critical decision is whether or not there was a significant motor weakness or sensory impairment which would impact military occupation specific activities.  There was no evidence in this case that motor weakness or sensory impairment existed to any degree that could be described as functionally impairing.  As a result panel members could not support the PEB’s rating of 10% using code 5295-8520 despite the fact that a neurologist diagnosed it.  Nevertheless, the PEB found the condition unfitting, and the panel cannot change that finding, although it may modify the rating as long as the overall rating is not lower than that which the PEB adjudicated for all conditions.  Therefore, panel members agreed that a 20% rating using code 5292 affords no advantage to the CI if no rating for the sensory radiculopathy is warranted.  

The panel also considered rating the back condition using VASRD diagnostic code 5293 based on incapacitating episodes due to intervertebral disc syndrome.  The rating criteria under this code are based on the number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a physician.  However, no documented physician-directed bed rest was evidenced in the STR or VA records.  The panel concluded the evidence did not support a rating under this code.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic mechanical low back pain with subjective left lower extremity radiculopathy.   

BOARD FINDINGS:  In the matter of the chronic mechanical low back pain with subjective left lower extremity radiculopathy condition and IAW VASRD §4.71a and VASRD §4.124a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151027, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record  

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44

      In accordance with reference (a), I have reviewed the cases listed below and approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN

		
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	     				  Acting